Triggers to review your will

• When a major event happens, like a birth or death in the family
• When you purchase or sell a major asset like a house or a business
• When you get engaged to marry, enter into a de-facto relationship, get married, separated or divorce your partner
• If there has been a breakdown in a relationship with relatives or friends
• If you’ve disposed of or acquired major assets
• You have you made a gift or loan of money to one of your beneficiaries which affects the division of your estate e.g. for school or university fees, or a house deposit?

If you own your own business or have a trust, you should also have a closer look at those too, or at least ask the question of what happens to them when something happens to you.

To make an appointment to review your will, or discuss your estate plan with one of our estate lawyers, please do not hesitate to contact us.

What are your rights?

A person’s rights do not diminish when he or she moves into a nursing home or hostel, regardless of his or her physical or mental frailty or ability to exercise or fully appreciate his or her rights. Everyone has a right to receive a service that is appropriate to their needs. For example, in scenario 1, John’s wife has the right to be taken to the toilet as needed and within a reasonable amount of time. She should not have to wait unnecessarily, causing distress or discomfort, and compromising her right to be treated with dignity.

No older person should be subjected to any form of abuse, often referred to as ‘elder abuse’, as suspected in scenario 2. Elder abuse can take various forms such as physical, psychological or emotional, sexual or financial abuse. It can also be the result of intentional or unintentional neglect.

There is legislation that protects people in aged care facilities and which imposes obligations on service providers. If the service provider breaches their obligations to an older person, then the person or their representative may complain. There must be an internal process within the facility for dealing with complaints. If the internal complaint resolution is not appropriate or the complaint is not dealt with favourably, you can contact the Aged Care Complaints Scheme.

What to do?

If you have any concerns or complaints regarding the provision of aged care services, you can contact the Aged Care Complaints Scheme, or if there are concerns about Elder Abuse, the Elder Abuse Prevention Unit.

You are also welcome to discuss a potential Aged Rights matter by calling Catherine Cheek (Special Counsel)

Phone: 07 4639 0358
Email: ccheek@cp484.ezyreg.com

When can I dispute a Will?

The time limit in which to make a claim is within 9 months of the date of death, but the estate may be distributed 6 months after the date of death if there is no notice of any application or intended application for family provision. Therefore, if you intend to make a claim against an estate, you should give notice of your intention to file an application for provision or further provision within 6 months from the deceased’s date of death.

It is at the Court’s discretion whether to extend the time after 9 months if it is satisfied that sufficient cause can be shown.

Who can dispute a Will?

A deceased person’s spouse, child or dependent, who considers that adequate support has not been made for his or her proper maintenance and support, can contest a Will.  Specifically, this includes:

• The wife or husband of the deceased at the time of death;
• A de-facto partner of deceased at time of death;
• A former legal spouse (must not be remarried and be receiving or entitled to maintenance OR be a parent of minor child of deceased and dependent at date of death);
• A child of the deceased;
• A step-child or adopted child of the deceased;
• A dependent of the deceased who at the time of death was wholly or substantially maintained or supported by the deceased and either a parent of deceased, parent of a child of deceased or person under 18;

On what grounds can I dispute a Will?

The court will consider a wide range of relevant factors when deciding if adequate provision has been made from the estate for your proper maintenance and support including:

• Your financial position, and specifically your financial needs relative to the value of the estate;
• Your health, family responsibilities and general circumstances.
• The size and nature of the deceased’s estate;
• The relationship between yourself and the deceased;
• The financial position, health and family circumstances of other persons who have a legitimate claim on the estate.
• The relationship the deceased had with other persons who have a legitimate claim on the estate.
• The financial position, health and family circumstances of the beneficiaries named in the Will in comparison with your own financial circumstances.

A will can also be challenged on the following grounds:

Undue Influence:  a Will may be set aside if it can be shown that undue influence has been exerted on the person making the Will.

Incapacity:  A person must have sound mind, memory and understanding to make a Will.  If a person lacks capacity to make the Will (i.e., they did not understand the nature and effect of their Will they were signing or were unable to make rational decisions about how their estate is distributed), the Will may be declared invalid.

Contract to make mutual Wills:  sometimes people may choose to enter into a binding contract to make their Wills in a certain way and not to change them. If they enter into such a contract and one of them later changes their Will without the consent of the other, any beneficiaries who miss out on their entitlement under the Will may be able to enforce the agreement and set aside the later Will made in breach of the agreement.

More information

This document contains only a brief summary of the laws about contesting an estate. If you have concerns that you have not been adequately provided for in a Will, and would like further advice please contact one of our experienced wills and estate planning lawyers.

David Whitehill
Phone:  07 3210 6500
Email: dwhitehill@cp484.ezyreg.com

Glen McCracken
Phone: 07 4639 0307
Email: gmccracken@cp484.ezyreg.com

Katie Cameron
Phone:07 4639 0323
Email: kcameron@cp484.ezyreg.com

PDF: Disputing a Will – Q&A

Superannuation Trust Deed

Superannuation balances (which often include significant life insurance) are held by your super fund trustees on your behalf under the terms of a superannuation trust deed. Under the terms of most superannuation trust deeds, when you die, the trustees of your fund decide how your superannuation will be dealt with.

Self-managed superfunds (SMSF)

In the case of a self-managed super fund, when you die, someone will take your place as trustee of your fund, or if you have a corporate trustee, someone will take control of the corporate trustee. That person may be the legal personal representative of your estate, or may be someone nominated in the trust deed.

As a general rule, the trustee of your SMSF has absolute discretion to decide who among your dependants receives your superannuation benefits upon your death.

Nominating a beneficiary

By keeping your nomination(s) up to date you can make sure that the right people receive your benefit.
There are a number of nomination options. The right one for you will depend on your specific circumstances. Some of these options are:

Binding Death Benefit Nomination (BDBN)
A BDBN allows you to specify who your superannuation is to be paid to when you die, and removes the discretion of the trustee to make that decision. If you don’t have a BDBN, the trustee for your super fund usually has the right to decide who receives your superannuation death benefits.
A BDBN must be executed in the presence of two independent witnesses and should be renewed every 3 years.

Non-Binding Death Benefit Nomination
A non-binding nomination allows you to state your wish as to who should receive tour super, whilst giving the trustee the flexibility to determine the best way of distributing the funds at that time of your death, taking into account issues such as the most tax effective method of dealing with the money.
Non-binding nominations do not expire, but still should be reviewed along with your will on a regular basis.

‘Hard Wired’ Clause
A ‘hard wired’ clause can be written in the trust deed of your SMSF, stating who the superannuation benefits are to be paid to when you die.

A ‘hard wired’ clause is binding, and can be tailored to suit specific requirements, such as covering how the superannuation death benefit must be paid, who is to succeed to the role of trustee and what investments must be maintained within the SMSF.

A ‘hard wired’ clause has many advantages, but it does require the expertise of an experienced wills and estate planning lawyer to ensure it is done properly.

Who can I leave my Super to?

You are restricted as to who you can nominate to receive your super. It may only be paid to your spouse (including a de facto spouse), your children, or someone with whom you have an interdependency relationship*, or your estate. If it is paid to your estate, it will be distributed in accordance with your Will.

*An interdependency relationship applies where two people have a “close personal relationship”, live together even if they are not related by family, one or each of them provides the other with financial support and and domestic support and personal care.

It also applies if the two people have a “close personal relationship” and the only reason they don’t satisfy the remaining conditions above is because either or both of them suffer from a physical, intellectual or psychiatric disability.

More information

For more information relating to superannuation death benefits, wills or estate planning in general, feel free to contact our experienced Wills and Estate Planning lawyers.

David Whitehill
Phone: 07 3210 6500
Email: dwhitehill@cp484.ezyreg.com

Glen McCracken
Phone: 07 4639 0307
Email: gmccracken@cp484.ezyreg.com

PDF: What happens to my super when I die?